Citation Nr: 0612177
Decision Date: 04/27/06 Archive Date: 05/09/06
DOCKET NO. 03-31 876 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for anxiety disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. Fetty, Counsel
INTRODUCTION
The veteran had active service from June 1956 to May 1959.
This appeal comes before the Board of Veterans' Appeals
(Board) from a February 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee, that denied entitlement to service
connection for anxiety. In February 2005, the Board remanded
the case for additional development. It has been returned to
the Board for further appellate consideration.
FINDINGS OF FACT
1. The veteran's service medical records (SMRs) were
destroyed in a fire at the National Personnel Records Center
(NPRC) in 1973.
2. Competent medical evidence reflects that the veteran's
anxiety disorder began many years after active military
service and is not related to active military service.
CONCLUSION OF LAW
An anxiety disorder was not incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.102,
3.303, 3.304, (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA must tell each claimant what evidence is needed to
substantiate a claim, what evidence the claimant is
responsible for obtaining and what evidence VA will undertake
to obtain. 38 U.S.C.A. § 5103(a). VA has also undertaken to
tell claimants to submit relevant evidence in their
possession. 38 C.F.R. § 3.159(b). VA must also inform a
claimant of the types of medical and lay evidence that the
claimant could submit that is relevant to establishing
disability.
VA has made required efforts to notify the veteran of the
information and evidence needed to substantiate his claim for
service connection. The RO provided a rating decision, a
statement of the case, and supplemental statements of the
case (SSOCs). VA sent notice letters in March 2002 and March
2005. These documents provided notice of the law and
governing regulations as well as the reasons for the
determination made regarding his claim. They told him what
evidence is needed to substantiate the claim. The letters
also told the veteran what evidence he was responsible for
obtaining, and what evidence VA would obtain.
VA has met its duty to assist in obtaining any available
evidence to substantiate the claim. VA examination reports
are associated with the claims files. All identified
evidence has been accounted for to the extent possible.
38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c). VA sent
its first notice letter prior to the initial adverse
decision, as required by Pelegrini v. Principi, 18 Vet. App.
112, 119-20 (2004). In February 2005, the Board remanded the
case for additional development.
In Short Bear v. Nicholson, 19 Vet. App. 341, (2005), the
United States Court of Appeals for Veterans Claims (Court)
determined that only VA's failure to point out what evidence
is needed to substantiate the claim would be unfairly
prejudicial to the veteran. Because VA has pointed out what
evidence is needed, no unfair prejudice has resulted.
During the pendency of this appeal, the Court issued a
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, Nos. 01-1917, 02-1506, 2006 WL 519755 (U. S. Vet.
App. Mar. 3, 2006), which held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service-connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the veteran was not
provided with notice of the type of evidence necessary to
establish an initial disability rating or effective date.
However, since service connection is being denied in this
decision, no disability rating or effective date will be
assigned, so there can be no possibility of any prejudice to
the veteran.
For these reasons, it is not prejudicial to the appellant for
the Board to proceed to finally decide this appeal. See
Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v.
Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App.
384 (1993).
Service Connection
Service connection may be awarded for disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303(a).
"Direct" service connection may be established for a
current disability when the evidence shows affirmatively that
the disability resulted from injury or disease incurred (or
aggravated) during active service. Id.
"Direct" service connection may be granted for any disease
not diagnosed initially until after discharge when all the
evidence, including that pertinent to service, establishes
that the disease was incurred during service. 38 C.F.R.
§ 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Each disabling condition shown by service medical records, or
for which the veteran seeks service connection, must be
considered on the basis of the places, types, and
circumstances of his service as shown by service records, the
official history of each organization in which he served, his
medical records, and all pertinent medical and lay evidence.
38 C.F.R. § 3.303(a).
There is no requirement that a disorder must be "chronic"
as a condition precedent to direct service connection under
38 C.F.R. § 3.303; however, "chronic diseases" as defined
at 38 C.F.R. § 3.307 and 3.309 are accorded special
consideration for service connection. Where a condition is
not shown to be chronic, then continuity of symptomatology is
required to support the claim. 38 C.F.R. § 3.303(b).
Once the evidence has been assembled, the Board assesses the
credibility and weight to be given to the evidence.
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and
cases cited therein. When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that a veteran need only demonstrate that there is an
approximate balance of positive and negative evidence in
order to prevail. To deny a claim on its merits, the
evidence must preponderate against the claim. Alemany v.
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet.
App. at 54.
The veteran has claimed that the current anxiety disorder
developed during active service and that he was given a
medical discharge because of that anxiety disorder. He
further contends that his anxiety disorder was caused by
sexual advances and harassment directed toward him by a male
superior during active service. National Personnel Record
Center (NPRC) has determined that all of the veteran's SMRs
and personnel records and any clinical records relevant to
the case were destroyed in a fire in 1973.
The veteran reported receiving private medical care shortly
after separation from active service; however, all attempts
to obtain those records of that treatment have failed. The
physician or physicians who treated the veteran have since
died and/or no relevant record could be found.
VA, private, and Social Security Administration (SSA) records
reflect that the veteran suffered knee and back injuries in
1985 and developed anxiety and depression subsequently.
During a February 2003 VA psychological evaluation, the
veteran reported having been molested during active service.
The evaluation contains a secondary Axis I diagnosis of
"PTSD features"; however, the primary Axis I diagnosis was
anxiety, not otherwise specified (NOS).
The veteran underwent a more complete VA psychological
evaluation in March 2005, at which time he reported attempted
sexual assaults made upon him during active service. That
evaluation yielded an Axis I diagnosis of anxiety disorder,
NOS. No post-traumatic stress disorder (PTSD) was found.
VA examined the veteran again in August 2005. A psychiatrist
noted that the veteran's reported history was considered
unreliable due to contradictory statements. The psychiatrist
noted that the claims file contains a 1986 private
psychiatric evaluation that found the veteran's background to
be free from mental problems. In the earlier private
psychiatric evaluation, the veteran had reported that he was
dishonorably discharged from the military because he was
homesick. The current VA psychiatrist also noted that during
a March 1987 private evaluation, the veteran denied a history
of mental problems, although he later claimed that he had
been on Valium(r) ever since discharge from the military. The
VA psychiatrist also referred to other evidence in the claims
file concerning other doctors who had examined the veteran in
the 1980s and found that the veteran had denied mental
problems prior to 1985.
During the August 2005 examination, the veteran reported the
attempted sexual assault by a superior and the VA
psychiatrist noted PTSD symptoms related to military trauma.
PTSD was not included in the diagnoses, however. The final
Axis I diagnoses were major depression, not related to active
service, and generalized anxiety disorder, not directly
related to active service. The psychiatrist based the
negative opinion on the psychiatric reports dated in the
later 1980s wherein the veteran had denied any mental problem
prior to 1985 injuries.
The veteran himself has linked his current mental problems to
active service, however, he does not have specialized
training in a health care field and it is not contended
otherwise. Lay statements are considered to be competent
evidence of symptoms of disease, disability, and injury;
however, when the determinative issue involves a question of
medical nature, such as the diagnosis, etiology, or date of
onset, as here, only those who have specialized training and
knowledge are competent to render an opinion. 38 C.F.R.
§ 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).
Where a diagnosis of PTSD is claimed due to a sexual assault,
additional development is required to corroborate the claimed
stressor. Patton v. West, 12 Vet. App. 272, 278-80 (1999)
(special evidentiary development procedures for PTSD claims
based on personal assault are contained in VA ADJUDICATION
PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996),
and former M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995)).
However, in this case, the symptoms do not meet the criteria
for PTSD. Therefore, additional development is not needed.
Where relevant records were destroyed in a fire at NPRC, the
Board has a heightened duty to explain its findings and
conclusions and to consider the benefit of the doubt rule.
O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this
case, assuming arguendo that the claimed sexual assault
and/or harassment took place and that the veteran was given a
medical separation, the evidence still strongly preponderates
against the claim, as all the post-service medical evidence
points to 1985 injuries as being the root cause of all
current mental disorders.
After considering all the evidence of record, the Board finds
that the preponderance of it is against the claim. Because
the preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application. See
38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim of
entitlement to service connection for anxiety disorder is
therefore denied.
ORDER
Service connection for anxiety is denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs